United States v. Lizarraga-Caceres , 311 F. App'x 235 ( 2009 )


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    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    FEB 09, 2009
    No. 07-14427             THOMAS K. KAHN
    Non-Argument Calendar            CLERK
    ________________________
    D. C. Docket No. 07-00099-CR-T-23-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSE ANTONIO GOVEO-ZARAGOZA,
    Defendant-Appellant.
    ________________________
    No. 07-14554
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-23-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ANDRES ESCOBEDO-ESTRADA,
    a.k.a. ANDRES ESTRADA-ESCOBEDO,
    Defendant-Appellant.
    ________________________
    No. 07-14632
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-23-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RAFAEL BUESA-HERRERA,
    a.k.a. Rafael Humberto Herrera-Bueso,
    a.k.a. Rafael Bueso-Herrera,
    Defendant-Appellant.
    ________________________
    No. 07-14655
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-23-TBM
    UNITED STATES OF AMERICA,
    2
    Plaintiff-Appellee,
    versus
    ELEAZAR CAMACHO-MALDONADO,
    Defendant-Appellant.
    ________________________
    No. 07-14656
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-23-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MIGUEL CRUZ-ACOSTA,
    Defendant-Appellant.
    _________________________
    No. 07-15313
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-17-TGW
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    3
    versus
    FRANCISCO PAUL VALDEZ-GONZALEZ,
    Defendant-Appellant.
    _______________________
    No. 07-15444
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 07-00099-CR-T-23TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JORGE ARMANDO LIZARRAGA-CACERES,
    Defendant-Appellant.
    ________________________
    Appeals from the United States District Court
    for the Middle District of Florida
    _________________________
    (February 9, 2009)
    Before DUBINA, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    Appellants Jose Antonio Goveo-Zaragoza, Andres Estrada-Escobedo, Rafael
    4
    Buesa-Herrera, Eleazer Camacho-Maldonado, Miguel Cruz-Acosta, Francisco Paul
    Valdez-Gonzalez, and Jorge Lizarraga-Caceres appeal their sentences for drug
    offenses. Valdez-Gonzalez also challenges his conviction. The seven
    codefendants were indicted by a federal grand jury on charges of conspiring to
    possess with intent to distribute five kilograms or more of cocaine while onboard a
    vessel subject to the jurisdiction of the United States, in violation of 
    46 U.S.C. §§ 70503
    (a), 70506(a), (b), and 
    21 U.S.C. § 960
    (b)(1)(B)(ii), and possession with
    intent to distribute five kilograms or more of cocaine while onboard a vessel
    subject to the jurisdiction of the United States, in violation §§ 70503(a), 70506(a),
    960(b)(1)(B)(ii), and 
    18 U.S.C. § 2
    . Each appellant pleaded guilty to the charges.
    I.    Goveo-Zaragoza
    Goveo-Zaragoza was sentenced to 235 months’ imprisonment. On appeal,
    he contends that the district court erred in denying him a safety-valve reduction, as
    the government did not offer any evidence to demonstrate that his statements and
    testimony were not truthful and complete. He also argues that, although he was an
    operational officer on the boat, his sentence was unreasonable because many of his
    codefendants with “greater or equal culpability” received lesser sentences, and this
    constituted cruel and unusual punishment. Finally, Goveo-Zaragoza contends that
    he was subjected to cruel and unusual punishment, in violation of the Eighth
    5
    Amendment, because officials deprived him of his heart medication for four days.
    A.     Safety-valve relief
    We review a district court’s safety-valve fact-finding for clear error. United
    States v. Cruz, 
    106 F.3d 1553
    , 1557 (11th Cir. 1997). Under the safety-valve
    provision, a district court shall impose a sentence without regard to any statutory
    mandatory minimum if a defendant convicted of certain drug crimes satisfies
    certain criteria established in U.S.S.G. § 5C1.2. Section 5C1.2(a) “requires a
    defendant to both truthfully and fully disclose information within [his] knowledge
    relating to the crime for which [he] is being sentenced.” United States v. Figueroa,
    
    199 F.3d 1281
    , 1283 (11th Cir. 2000).
    After reviewing the record, we conclude that the district court did not clearly
    err by failing to grant Goveo-Zaragoza a two-level safety-valve reduction because
    it found that he withheld information regarding how much he knew about the scope
    of the common scheme and how much compensation he would receive for his role
    in the criminal activity.
    B.     Reasonableness
    The Supreme Court has explained that the substantive reasonableness of a
    sentence is reviewed under an abuse-of-discretion standard. Gall v. United States,
    552 U.S. ___, ___, 
    128 S. Ct. 586
    , 597, 
    169 L. Ed. 2d 445
     (2007). The district
    6
    court must consider the following factors to determine a reasonable sentence:
    (1) the nature and circumstances of the offense and the history and
    characteristics of the defendant; (2) the need to reflect the seriousness
    of the offense, to promote respect for the law, and to provide just
    punishment for the offense; (3) the need for deterrence; (4) the need to
    protect the public; (5) the need to provide the defendant with needed
    educational or vocational training or medical care; (6) the kinds of
    sentences available; (7) the Sentencing Guidelines range; (8) pertinent
    policy statements of the Sentencing Commission; (9) the need to
    avoid unwanted sentencing disparities; and (10) the need to provide
    restitution to victims.
    United States v. Talley, 
    431 F.3d 784
    , 786 (11th Cir. 2005) (citing 
    18 U.S.C. § 3553
    (a)). While the district court must consider the § 3553(a) factors, it is not
    required to discuss each factor. Id.
    We have declined to review a claim that a sentence constituted cruel and
    unusual punishment when the argument was not raised in the district court. See
    United States v. Sanchez, 
    138 F.3d 1410
    , 1417 (11th Cir. 1998). Nevertheless, we
    generally review a constitutional challenge to a sentence not raised in the district
    court for plain error. United States v. Swatzie, 
    228 F.3d 1278
    , 1281 (11th Cir.
    2000). To correct plain error, we first must find (1) error, (2) that is plain, and (3)
    that affects substantial rights. “If all three conditions are met, an appellate court
    may then exercise its discretion to notice a forfeited error, but only if (4) the error
    seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” 
    Id.
     (quoting Johnson v. United States, 
    520 U.S. 461
    , 466-67, 117 S.
    7
    Ct. 1544, 1548-49 (1997)).
    “In non-capital cases, the Eighth Amendment encompasses, at most, only a
    narrow proportionality principle.” United States v. Brant, 
    62 F.3d 367
    , 368 (11th
    Cir. 1995). We “must make a threshold determination that the sentence imposed is
    grossly disproportionate to the offense committed, and if it is grossly
    disproportionate, the court must then consider the sentences imposed on others
    convicted in the same jurisdiction and the sentences imposed for commission of the
    same crime in other jurisdictions.” United States v. Reynolds, 
    215 F.3d 1210
    , 1214
    (11th Cir. 2000).
    We conclude from the record that Goveo-Zaragoza’s sentence was
    substantively reasonable because, despite the fact that he received a higher
    sentence than some of his codefendants, he was not similarly situated to those
    codefendants. Further, his sentence did not constitute cruel and unusual
    punishment because, based on his role as an operation officer, as well as the
    historic amount of cocaine involved and the severity of the offense in this regard, it
    cannot be said that his sentence was “grossly disproportionate” to the offense.
    C.     Cruel and unusual punishment
    Deliberate indifference to a prisoner’s serious medical needs violates the
    Eighth Amendment. Farrow v. West, 
    320 F.3d 1235
    , 1243 (11th Cir. 2003). This
    8
    is a constitutional tort, which is properly brought through a 
    42 U.S.C. § 1983
     cause
    of action, and not on direct appeal. See Anderson v. City of Atlanta, 
    778 F.2d 678
    ,
    686 n.12 (11th Cir. 1985). Because Goveo-Zaragoza attempts to raise this claim
    on direct appeal, as opposed to a proper § 1983 action, we will not consider the
    claim. See id.
    II.   Estrada-Escobedo
    Estrada-Escobedo was sentenced to 151 months’ imprisonment. On appeal,
    he first appears to contend that he should have received a minor-role reduction, as
    the court should have taken into account the fact that he did not have any decision-
    making authority, did not plan or organize the offense, and was only a
    “rudimentary” participant. He also argues that his sentence was unreasonable,
    because he was taken into custody in the United States, and, by no fault of his own,
    he became an illegal alien in this country subject to deportation and exposed to
    several disparate sentencing and confinement conditions.
    A.     Minor-role reduction
    A district court’s determination of a defendant’s role in an offense
    constitutes a factual finding to be reviewed only for clear error. United States v.
    De Varon, 
    175 F.3d 930
    , 937 (11th Cir. 1999) (en banc). The defendant bears the
    burden of proving, by a preponderance of the evidence, that he is entitled to a
    9
    mitigating-role reduction. 
    Id. at 939
    . The guidelines provide for a two-level
    reduction for a minor participant, which is defined as a defendant “who is less
    culpable than most other participants, but whose role could not be described as
    minimal.” U.S.S.G. § 3B1.2 and cmt. (n.5). To determine whether this reduction
    applies, a district court first should measure the defendant’s role against the
    relevant conduct for which the defendant has been held accountable. De Varon,
    
    175 F.3d at 940-41
    . The amount of drugs, in particular, is a material consideration
    in assessing the defendant’s role, and “may be dispositive–in and of itself–in the
    extreme case.” 
    Id. at 943
    . Further, “when a drug courier’s relevant conduct is
    limited to [his] own act of importation, a district court may legitimately conclude
    that the courier played an important or essential role in the importation of those
    drugs.” 
    Id. at 942-43
    .
    Although, in many cases, this first method of analysis will be dispositive, the
    district court also may measure the defendant’s culpability in comparison to that of
    other participants in the relevant conduct. 
    Id. at 944-45
    . Two sub-principles guide
    this application of the analysis: (1) the district court should look only to other
    participants who are identifiable or discernable from the evidence; and (2) only
    those participants who were involved in the relevant conduct attributed to the
    defendant may be considered. 
    Id. at 944
    . “The conduct of participants in any
    10
    larger criminal conspiracy is irrelevant.” 
    Id.
    Because the record demonstrates that Estrada-Escobedo’s role in the offense
    was identical to his relevant conduct, and he failed to show that he was less
    culpable than the other crew members in the relevant conduct of transporting the
    cocaine, we conclude that the district court did not clearly err by finding that he did
    not qualify for a minor-role reduction.
    B.     Reasonableness
    We may review a sentence for procedural or substantive reasonableness. See
    Gall, 552 U.S. at ___, 
    128 S. Ct. at 597
    ; see also United States v. Hunt, 
    459 F.3d 1180
    , 1182 n.3 (11th Cir. 2006). Although Estrada-Escobedo preserved his
    reasonableness challenge, he did not raise below the specific argument regarding
    his status as an illegal alien. Accordingly, review of this argument is for plain
    error. See United States v. Gresham, 
    325 F.3d 1262
    , 1265 (11th Cir. 2003). The
    Supreme Court has explained that a sentence may be procedurally unreasonable if
    the district court improperly calculates the guideline imprisonment range, treats the
    guidelines as mandatory, fails to consider the appropriate statutory factors, bases
    the sentence on clearly erroneous facts, or fails to adequately explain its reasoning.
    Gall, 552 U.S. at __, 
    128 S. Ct. at 597
    . “[T]here is a range of reasonable sentences
    from which the district court may choose,” and “[a] district court may impose a
    11
    sentence that is either more severe or lenient than the sentence we would have
    imposed.” United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005). A court is
    free to determine the appropriate weight to be given to each of the § 3553(a)
    factors. See United States v. Williams, 
    456 F.3d 1353
    , 1363 (11th Cir. 2006), cert.
    dismissed, 
    127 S. Ct. 3040
     (2007).
    Because we conclude from the record that the district court correctly
    calculated the advisory guideline range and considered the factors enumerated in
    § 3553(a), and Estrada-Escobedo’s sentence was at the bottom of the guideline
    range, we hold that the district court imposed a procedurally and substantively
    reasonable sentence. Further, Estrada-Escobedo’s argument that the district court
    erred by not considering the sentencing disparity between himself and a non-alien
    is without merit because a sentencing court is not required to discuss each §
    3553(a) factor, and the weight that the court assigned to each factor is within its
    discretion. Accordingly, we affirm Estrada-Escobedo’s sentence.
    III.   Buesa-Herrera
    Buesa-Herrera was sentenced to 151 months’ imprisonment. On appeal, he
    first contends that the district court clearly erred by failing to grant him a two-level
    minor-role reduction, as he had no knowledge of the structure of the enterprise or a
    clear understanding of the roles of others involved in the conspiracy, and he knew
    12
    only a few hours before that he would be loading cocaine onto a ship. He also
    argues that his sentence was arbitrary and procedurally unreasonable because the
    district court considered only the amount of drugs involved in the offense, which
    determined the guideline range, and it failed to consider the other § 3553(a)
    sentencing factors.
    A.     Minor-role reduction
    Because the record indicates that Buesa-Herrera’s role in the offense was
    identical to his relevant conduct, and he failed to show that he was less culpable
    than the other crew members in the relevant conduct of transporting the cocaine,
    we conclude that the district court did not plainly err by finding that he did not
    qualify for a minor-role reduction.
    B.     Reasonableness
    Because the record supports the district court’s calculation of the advisory
    guideline range, and it shows that the district court adequately considered the
    factors enumerated in § 3553(a), we conclude that it imposed a procedurally
    reasonable sentence. Accordingly, we affirm Buesa-Herrera’s sentence.
    IV.   Camacho-Maldonado
    Camacho-Maldonado was sentenced to 151 months’ imprisonment. On
    appeal, he first contends that the district court clearly erred in not granting him a
    13
    minor-role reduction, as there were “many” other people involved in the
    conspiracy who played a far greater role than he did, and he was merely a courier
    and the lowest-ranking member of the crew. He also argues that his sentence was
    unreasonable, because the district court failed to consider the effect that his
    imprisonment will have on his family in Mexico.
    A.     Minor-role reduction
    Because the record demonstrates that Camacho-Maldonado’s role in the
    offense was identical to his relevant conduct, and he failed to show that he was less
    culpable than the other crew members in the relevant conduct of transporting the
    cocaine, we conclude that the district court did not clearly err by finding that he did
    not qualify for a two-level minor-role reduction.
    B.     Reasonableness
    Because we conclude from the record that the district court correctly
    calculated the advisory guideline range and adequately considered the factors
    enumerated in § 3553(a), it imposed a procedurally reasonable sentence.
    Accordingly, we affirm Camacho-Maldonado’s sentence.
    V.    Cruz-Acosta
    Cruz-Acosta was sentenced to 151 months’ imprisonment. On appeal, he
    contends that the district court erred in denying him a minor-role reduction, as the
    14
    court appeared to have concluded that, in “boat cases,” a defendant is precluded as
    a matter of law from receiving this reduction, and the court considered only the
    offense itself, without taking into account Cruz-Acosta’s actual role in it. He also
    argues that his sentence was procedurally unreasonable because the district court
    considered only the quantity of drugs that he transported in determining that he
    was not eligible for a minor-role reduction.
    A.     Minor-role reduction
    Because the record demonstrates that Cruz-Acosta’s role in the offense was
    identical to his relevant conduct, and he failed to show that he was less culpable
    than the other crew members in the relevant conduct of transporting the cocaine,
    we conclude that the district court did not plainly err by finding that he did not
    qualify for a two-level minor-role reduction.
    B.     Reasonableness
    Because the record demonstrates that the district court correctly calculated
    the advisory guideline range and considered the factors enumerated in § 3553(a),
    and Cruz-Acosta’s sentence was at the bottom of the guideline range, we conclude
    that the district court imposed a procedurally and substantively reasonable
    sentence. Accordingly, we affirm Cruz-Acosta’s sentence.
    VI.   Valdez-Gonzalez
    15
    After entering his guilty plea, Valdez-Gonzalez moved to withdraw the plea,
    arguing that he was misinformed by his attorney regarding his options in going to
    trial versus pleading guilty. The court denied this motion and subsequently
    sentenced Valdez-Gonzalez to 245 months’ imprisonment. On appeal, Valdez-
    Gonzalez first argues that his guilty plea was invalid and must be withdrawn,
    because his trial counsel was ineffective for failing to assert trial defenses and
    improperly advising him about the application of the guidelines, such that his
    decision to plead guilty was misinformed. He also contends that the district court
    erred in imposing two-level captain enhancement, pursuant to U.S.S.G. §
    2D1.1(b)(2)(B), because there was no evidence presented to establish that the
    object of the conspiracy was to import or distribute drugs in this country. In other
    words, the Government did not show a jurisdictional nexus to the United States.
    A.     Guilty plea
    We review the denial of a request to withdraw a guilty plea for an abuse of
    discretion, reversing only if the court’s ultimate conclusion is “arbitrary or
    unreasonable.” United States v. Freixas, 
    332 F.3d 1314
    , 1316, 1318 (11th Cir.
    2003). Pursuant to Fed.R.Crim.P. 11(d), a court may permit a defendant to
    withdraw his plea before the court imposes sentence for a “fair and just reason.”
    Fed.R.Crim.P. 11(d)(2)(B). In determining whether a defendant has shown a “fair
    16
    and just reason,” the court evaluates the totality of the circumstances, including:
    (1) whether the defendant had close assistance of counsel; (2) whether his plea was
    knowing and voluntary; (3) whether judicial resources would be conserved; and
    (4) whether the government would be prejudiced by the withdrawal. Freixas, 
    332 F.3d at
    1318 (citing United States v. Buckles, 
    843 F.2d 469
    , 472 (11th Cir. 1988)).
    We conclude from the record here that the district court did not abuse its
    discretion in not allowing Valdez-Gonzalez to withdraw his guilty plea because he
    did not establish a fair and just reason for the withdrawal. Accordingly, we affirm
    Valdez-Gonzalez’s conviction.
    B.     Captain enhancement
    We review a district court’s findings of fact for clear error and its application
    of the Sentencing Guidelines de novo. United States v. Cartwright, 
    413 F.3d 1295
    ,
    1298 (11th Cir. 2005), cert. denied, 
    126 S. Ct. 1116
     (2006). The guidelines
    provide for a two-level enhancement in a defendant’s offense level “[i]f the
    defendant unlawfully imported or exported a controlled substance under
    circumstances in which . . . the defendant acted as a pilot, copilot, captain,
    navigator, . . . aboard any craft or vessel carrying a controlled substance.”
    U.S.S.G. § 2D1.1(b)(2)(B). We have not adopted a rigid definition of the term
    “captain,” but rather, look to the facts of each case to determine whether the
    17
    enhancement was properly applied. See Cartwright, 
    413 F.3d at 1298
    . In United
    States v. Rendon, 
    354 F.3d 1320
    , 1229-31 (11th Cir. 2003), we rejected the
    appellant’s arguments that, in order for the captain enhancement to apply, the
    controlled substance actually must be imported, and because there was no actual
    importation into the United States and no evidence that the cocaine was destined to
    be delivered to the United States, the enhancement could not be applied.
    Because Valdez-Gonzalez was the captain of a vessel carrying a controlled
    substance that was intended to be unlawfully imported or exported, we conclude
    that the district court did not clearly err in applying the captain enhancement here.
    Accordingly, we affirm Valdez-Gonzalez’s sentence as well.
    VII. Lizarraga-Caceres
    Lizzaraga-Caceres was sentenced to 188 months’ imprisonment. On appeal,
    he contends that the district court erred in denying him a mitigating-role reduction,
    as he was nothing more than a “mule” here, and the court should have considered
    that he: (1) was not going to receive any of the proceeds from the drugs; (2) did not
    own or package the drugs: and (3) did not plan the trip or book the vessel.
    Because the record demonstrates that Lizarraga-Caceres’s role in the offense
    was identical to his relevant conduct, and he failed to show that he was less
    culpable than the other crew members in the relevant conduct of transporting
    18
    cocaine, we conclude that the district court did not clearly err by finding that he did
    not qualify for a mitigating-role reduction. Accordingly, we affirm his sentence.
    For the above-stated reasons, we affirm Valdez-Gonzalez’s conviction and
    all of the defendants’ sentences.
    AFFIRMED.
    19